SUPREME
COURT OF CANADA
Citation: Communications,
Energy and Paperworkers Union of Canada v. Native Child and Family
Services of Toronto,
2010 SCC 46, [2010] 2 S.C.R.
737
|
Date: 20101104
Docket: 32908
|
Between:
Communications,
Energy and Paperworkers
Union
of Canada
Appellant
and
Native
Child and Family Services of Toronto
Respondent
‑ and ‑
Attorney
General of Canada, Attorney General of Ontario,
Attorney
General of Quebec, Attorney General of New Brunswick,
Attorney
General of Manitoba, Attorney General of British Columbia,
Attorney
General for Saskatchewan, Assembly of First Nations of
Quebec
and Labrador and First Nations of Qubec and
Labrador
Health and Social Services Commission
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish,
Abella, Charron, Rothstein and Cromwell JJ.
Reasons for
Judgment:
(paras. 1 to 12)
Joint Concurring
Reasons:
(paras. 13 to 14)
|
Abella J. (LeBel, Deschamps, Charron, Rothstein and
Cromwell JJ. concurring)
McLachlin C.J. and Fish J.
(Binnie J. concurring)
|
______________________________
Communications, Energy and Paperworkers Union of Canada v.
Native Child and Family Services of Toronto, 2010 SCC 46, [2010] 2 S.C.R. 737
Communications,
Energy and Paperworkers
Union of Canada Appellant
v.
Native Child and Family Services of Toronto Respondent
and
Attorney
General of Canada, Attorney General of
Ontario,
Attorney General of Quebec, Attorney General
of New
Brunswick, Attorney General of Manitoba,
Attorney
General of British Columbia, Attorney General
for
Saskatchewan, Assembly of the First Nations of Quebec
and Labrador
and First Nations of Quebec and Labrador
Health and Social Services Commission Interveners
Indexed as: Communications, Energy and Paperworkers Union
of Canada v. Native Child and Family Services of Toronto
2010 SCC 46
File No.: 32908.
2009: December 8; 2010: November 4.
Present: McLachlin C.J. and Binnie, LeBel,
Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the
federal court of appeal
Constitutional law — Division of powers — Labour
relations — Aboriginal peoples — Child welfare agency providing services to
Aboriginal children and families in Toronto — Union applying to Canada
Industrial Relations Board for certification as bargaining agent for child
welfare agency’s employees — Agency arguing its labour relations within exclusive
provincial authority — Whether agency constitutes a federal undertaking based
on its nature, operations and habitual activities — Whether Aboriginal aspects
of agency’s operations and service delivery displace presumption of provincial
jurisdiction over labour relations — Constitution Act, 1867, s. 91(24) .
Native Child and Family Services of Toronto is a
children’s aid society that provides services to Aboriginal families in
Toronto. The Union applied to be certified as the bargaining agent for Native
Child’s employees. Native Child challenged the application, arguing its labour
relations were within exclusive provincial authority. The Canada Industrial
Relations Board concluded Native Child’s labour relations were an integral part
of primary federal jurisdiction over “Indians” under s. 91(24) of the Constitution
Act, 1867 and therefore subject to the Canada Labour Code . The
Federal Court of Appeal disagreed, concluding that Native Child’s labour
relations were under provincial jurisdiction.
Held: The appeal should
be dismissed.
Per LeBel, Deschamps,
Abella, Charron, Rothstein and Cromwell JJ.: As noted in NIL/TU,O
Child and Family Services Society v. B.C. Government and Service Employees’
Union, 2010 SCC 45, [2010] 2 S.C.R. 696, released concurrently, labour
relations presumptively fall under provincial authority. Federal jurisdiction
arises only as an exception when the nature of an entity’s operations can be
properly characterized as federal on an application of the “functional test”.
That presumption has not been displaced in this case. Native Child’s mandate
to deliver effective, culturally-appropriate services to Aboriginal clients and
communities does not alter the fact that the essential function of the agency’s
operation is to deliver child welfare services, a provincial function.
Per McLachlin C.J.
and Binnie and Fish JJ.: Based on the approach outlined in NIL/TU,O
Child and Family Services Society v. B.C. Government and Service Employees’
Union, 2010 SCC 45, [2010] 2 S.C.R. 696, federal labour relations
jurisdiction does not apply.
Cases Cited
By Abella J.
Applied: NIL/TU,O
Child and Family Services Society v. B.C. Government and Service Employees’
Union, 2010 SCC 45, [2010] 2 S.C.R. 696; referred to: C.U.P.E. v.
Native Child and Family Services of Toronto, [1995] O.L.R.D. No. 4298 (QL).
By McLachlin C.J. and Fish J.
Referred to: NIL/TU,O
Child and Family Services Society v. B.C. Government and Service Employees’
Union, 2010 SCC 45, [2010] 2 S.C.R. 696.
Statutes and Regulations Cited
Canada Labour Code,
R.S.C. 1985, c. L‑2 .
Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 1, 7(1), 15(2), (3), (4).
Constitution Act, 1867,
s. 91(24) .
Corporations Act, R.S.O. 1980, c. 95.
APPEAL from a judgment of the Federal Court of Appeal
(Décary, Sexton and Sharlow JJ.A.), 2008 FCA 338, 382 N.R. 330, [2009] 1
C.N.L.R. 218, 2009 C.L.L.C. ¶220‑022, 302 D.L.R. (4th) 700, [2008] F.C.J.
No. 1497 (QL), 2008 CarswellNat 3855, setting aside an order of the Canada
Industrial Relations Board, Order No. 9289‑U. Appeal dismissed.
Douglas J. Wray
and Jesse M. Nyman, for the appellant.
Mark V. Ellis,
for the respondent.
Peter Southey and Sean
Gaudet, for the intervener the Attorney General of Canada.
Sean Hanley and Bruce
Ellis, for the intervener the Attorney General of Ontario.
Sylvain Leboeuf
and Monique Rousseau, for the intervener the Attorney General of Quebec.
Gaétan Migneault,
for the intervener the Attorney General of New Brunswick.
Cynthia Devine,
for the intervener the Attorney General of Manitoba.
Paul E. Yearwood,
for the intervener the Attorney General of British Columbia.
R. James Fyfe,
for the intervener the Attorney General for Saskatchewan.
David Schulze and Barbara
Cuber, for the interveners the Assembly of the First Nations of Quebec and
Labrador and the First Nations of Quebec and Labrador Health and Social
Services Commission.
The judgment of LeBel, Deschamps, Abella, Charron,
Rothstein and Cromwell JJ. was delivered by
[1]
Abella J. — Native Child
and Family Services of Toronto (“Native Child”) is a children’s aid society
that provides services to Aboriginal families in Toronto. In 2007, the
Communications, Energy and Paperworkers Union of Canada applied to the Canada
Industrial Relations Board to be certified as the bargaining agent for all
Native Child employees except students, supervisors and persons above the rank
of supervisor. Native Child challenged the application, arguing that its
labour relations were within exclusive provincial authority.
[2]
The Board rejected Native Child’s objection, concluding that Native
Child’s labour relations were an integral part of primary federal jurisdiction
over “Indians” under s. 91(24) of the Constitution Act, 1867 and
therefore subject to the Canada Labour Code, R.S.C. 1985, c. L-2 (Order
No. 9289-U, dated November 23, 2007). On judicial review, Sexton J.A.
disagreed, concluding that Native Child’s labour relations were under
provincial jurisdiction (2008 FCA 338, 382 N.R. 330). I agree.
[3]
As in NIL/TU,O Child and Family Services Society v. B.C. Government
and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696, released
concurrently, the issue in this appeal is whether the provincial or federal
government has jurisdiction over the agency’s labour relations. As noted in NIL/TU,O,
labour relations presumptively fall under provincial authority. Federal
jurisdiction arises only as an exception when the nature of an entity’s
operations can be properly characterized as federal on an application of the
“functional test”.
[4]
In 1986, Native Child was incorporated under Ontario’s Corporations
Act, R.S.O. 1980, c. 95, to provide “a life of quality, well-being, caring
and healing” to Toronto’s Aboriginal community by offering child welfare and
family support services that were “culture-based” and respectful of “the
supreme values of Native people, the extended family, and the right of
self-determination” (C.U.P.E. v. Native Child and Family Services of Toronto,
[1995] O.L.R.D. No. 4298 (QL), at para. 3).
[5]
In 1987, Native Child and Ontario’s Minister of Community and Social
Services entered into an agreement that identified Native Child as an
authorized service provider under the Child and Family Services Act,
R.S.O. 1990, c. C.11. The Act regulates the delivery of all child welfare
services in the province and s. 7(1) empowers the provincial government to make
agreements with persons, municipalities and agencies for the provision of child
welfare and support services, and to pay for those services out of legislative
appropriations. The agreement provided that Native Child was a
“native-controlled, community based agency” (C.U.P.E., at para. 3) that
would provide support, prevention and advocacy services to Aboriginal children
and families in Metropolitan Toronto. As a service provider, Native Child had
to enter into annual service agreements with the provincial government, which
had line by line budget approval over Native Child’s funding.
[6]
In 2004, Ontario’s Minister of Children and Youth Services designated
Native Child as a children’s aid society under s. 15(2) of the Act, which
provides:
The Minister may designate an approved agency as a
children’s aid society for a specified territorial jurisdiction and for any or
all of the functions set out in subsection (3), may impose terms and conditions
on a designation and may vary, remove or amend the terms and conditions or
impose new terms and conditions at any time, and may at any time amend a
designation to provide that the society is no longer designated for a
particular function set out in subsection (3) or to alter the society’s
territorial jurisdiction.
[7]
Native Child, when fulfilling its statutory functions, is bound to
comply with the Act’s objectives, standards and procedures, most notably the
Act’s paramount purpose of “promot[ing] the best interests, protection and well
being of children” (ss. 1(1), 1(2) and 15(4)). As a children’s aid society,
Native Child’s functions include: investigating allegations or evidence that
children who are under the age of 16 years or are in the society’s care or
under its supervision may be in need of protection; protecting, where
necessary, children who are under 16 or are in the society’s care or under its
supervision; providing guidance, counselling and other services to families for
protecting children or for the prevention of circumstances requiring the
protection of children; providing care for children assigned or committed to
its care under the Act; supervising children assigned to its supervision under
the Act; placing children for adoption; and performing any other statutory
duties (s. 15(3)). Some of its support services are directed towards
children’s mental health, family well-being, parental education, childhood
education and youth outreach, and have included a customary care program, a
sexual abuse program for women and children, a summer camp and a mother’s
assistance program.
[8]
Native Child shares responsibility for delivering child welfare services
in Toronto with the Children’s Aid Society of Toronto, the Catholic Children’s
Aid Society of Toronto, and the Jewish Children’s Aid Society. Toronto’s
Aboriginal population can seek child welfare services from any of these
agencies — they are not required to rely on Native Child.
[9]
From the record, it appears that the federal government has provided
some funding to Native Child, but the province, bolstered by some municipal and
non-governmental contributions, funds the bulk of Native Child’s operations.
There is no formal band involvement in Native Child’s governance, although its
employees and board members are primarily Aboriginal.
[10] In my
view, the nature of what Native Child does is to deliver child welfare
services. This falls under provincial jurisdiction. Native Child, wholly
regulated by the Child and Family Services Act, is a fully integrated,
provincially designated children’s aid society that provides services in
accordance with statutory standards in Toronto. The crux of its operations is,
as Native Child submitted, to “provide child and family services pursuant to
Provincial statutorily prescribed standards in the same manner and with the
same professionalism that is provided by all such ‘sister’ agencies in the
Province”.
[11] It is
argued, however, that the Aboriginal aspects of Native Child’s operation render
it a federal undertaking by virtue of s. 91(24) . Yet, as explained in NIL/TU,O,
a provincially regulated child welfare agency’s mandate to deliver effective,
culturally appropriate services to Aboriginal clients and communities does not
alter the fact that the essential function of the agency’s operation is to
deliver child welfare services, a provincial function. While the identity of
Native Child’s clients undoubtedly has, and should have, an impact on the way
the agency delivers services, it does not alter the essential nature of what
Native Child does.
[12] For
these reasons and for those set out in NIL/TU,O, I am of the view that
the presumption in favour of provincial jurisdiction over labour relations has
not been displaced. I would therefore dismiss the appeal with costs.
The reasons of McLachlin C.J. and Binnie and Fish JJ. were delivered by
[13] The Chief Justice and Fish J. — Though
we concur with Justice Abella in her conclusion that the society’s culturally
directed services do not attract federal labour relations jurisdiction, we do
so on the basis of the approach outlined in our reasons in NIL/TU,O Child
and Family Services Society v. B.C. Government and Service Employees’ Union,
2010 SCC 45, [2010] 2 S.C.R. 696.
[14]
We would dismiss the appeal.
Appeal dismissed with costs.
Solicitors for the appellant: Caley &
Wray, Toronto.
Solicitors for the respondent: Baker &
McKenzie, Toronto.
Solicitor for the intervener the Attorney General of
Canada: Attorney General of Canada, Toronto.
Solicitor for the intervener the Attorney General of
Ontario: Attorney General of Ontario, Toronto.
Solicitor for the intervener the Attorney General of
Quebec: Attorney General of Quebec, Québec.
Solicitor for the intervener the Attorney General of
New Brunswick: Attorney General of New Brunswick, Fredericton.
Solicitor for the intervener the Attorney General of
Manitoba: Attorney General of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General of
British Columbia: Attorney General of British Columbia, Victoria.
Solicitor for the intervener the Attorney General for
Saskatchewan: Attorney General for Saskatchewan, Regina.
Solicitors for the interveners the Assembly of the
First Nations of Quebec and Labrador and the First Nations of Quebec and
Labrador Health and Social Services Commission: Dionne Schulze,
Montréal.